Frequently Asked Questions (Q&A) About a

New Jersey Will

Should I have a will or a trust? Understanding the differences. And… Does it matter?

fniemann@hnlawfirm.com

A Will generally spells out a one-time distribution of assets, though both a will and a trust can establish conditions to the distribution and stipulate that assets are distributed over time.  For example, if you have young children or grandchildren, a trust can be written so that they get their inheritance in installments upon certain milestones, such as reaching age 25/30, graduating college or marriage.  This way their funds are not squandered like the “prodigal son or daughter” referred to in the Bible.

Frequently Asked Questions About NJ Wills and Trusts

Here are some common questions and answers about wills and trusts.

Q: What goes into setting up a will or a trust in New Jersey?

A: Each document is written and is legally enforceable.  Either a will or a trust can be simple or be more complicated, and therefore more expensive.

Costs vary widely depending on the size and complexity of the estate, but many attorneys will charge a flat fee for either document. Be sure to get a quoted fee from your attorney before you proceed.

Once the document you pick is written up, be sure to let family members or those named in the will or trust will know where to find it. Anybody who has possession of your will - often your attorney - is obliged to produce it upon your death, if requested by the executor named in your will.

Q: What role does a court play in either scenario?

A:  Wills are filed upon death with the Surrogate’s Office of the New Jersey county where the deceased person lived. Wills are not public records or filed until death.

Probate and Administrative court fees come out of the estate; costs vary, but are generally not expensive.

The use of a will is more common in states like New Jersey with simpler probate procedures.  Usually the presence of only one person close to the deceased, often the executor of the will or a family member is required to probate a will.

One common reason for setting up a trust, rather than a will, is to avoid probate.

With a trust, your assets are transferred to the designated trustee (or trustees) either while you are alive (an inter vivos trust) or upon your death (a testamentary trust). A brief "pour-over will" usually declares that any remaining assets not within the trust at time of death be transferred into the trust upon your death.

You can also set up a "trust within a trust" or a trust within a will, for a single beneficiary or multiple beneficiaries, like children or parents.

Q: Who's responsible for overseeing my New Jersey will or trust?

A: The executor you name carries out the instructions of your will. A trustee plays a similar role in a trust under your will, but usually for a much longer time- typically until all assets are distributed to the beneficiaries. A bank or financial institution might be named to act as a co-executor or co-trustee.

A trustee is also usually given some discretionary authority if and when distributions should be made to beneficiaries.

While the titles sound simple, the responsibilities of executors and trustees of a New Jersey estate are significant. They include paying or negotiating with creditors, notifying and paying beneficiaries and creditors, filing the final income tax and estate tax return and managing any investments.

Q: What happens to the debt I leave behind?

A: Whether you have a will or a trust, any debt you have at the time of your death will need to be settled. If your assets aren't liquid, creditors could force the sale of your property to get paid.

Of course, a trustee or an executor could negotiate with creditors to repay debts over time.

Q: Are there other benefits to setting up a trust vs. a will in
New Jersey?

A: One reason some people prefer trusts is that it makes it easier to handle your care if you become medically incapacitated. You can stipulate in your trust that your assets be used to pay for your care, and the trustee is then able to disburse money from your trust estate without going to court.

Without a trust, you need a power of attorney with life care authority, otherwise a guardianship is required by law.

New Jersey Wills attorney serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Mercer

County, Middlesex County, Bergen County, Morris County, Burlington County,

Union County, Somerset County, Hudson County, Passaic County

NJ Wills attorney | Should I have a will or a trust? | New Jersey Wills Q&A | Wills in NJ

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